POLITICS
04/09/2013 12:01 pm ET | Updated Apr 09, 2013

Obama Makes National Labor Board Nominations As Agency Lingers In Limbo

WASHINGTON -- President Barack Obama made three nominations to the National Labor Relations Board on Tuesday, hoping to bring some stability to an agency that's been thrown into limbo by congressional gridlock and a recent appellate court ruling that found the board's current recess appointments to be unconstitutional.

The president's nominees are Mark Gaston Pearce, who's currently the board's chairman and whose appointment is set to expire in August, along with Harry I. Johnson III and Philip A. Miscimarra. In February, the president resubmitted two nominees, Sharon Block and Richard Griffin, meaning a full board of nominees will now go before the Senate.

"By enforcing workplace protections, upholding the rights of workers and providing a stable workplace environment for businesses, the NLRB plays a vital role in our efforts to grow the economy and strengthen the middle class," Obama said in a statement. "I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people."

Given the politics surrounding the board, the White House nominees can expect unusual scrutiny from congressional Republicans. The president has already had to rely on recess appointments simply to keep the board functioning, which leaves little reason to believe this current crop will clear the nomination process any time soon.

The NLRB is an independent federal agency tasked with enforcing labor laws on companies and unions and resolving labor disputes. The board has withstood sharp political attacks in recent years, with Republicans and the business lobby accusing Obama-era board members of being overly friendly to labor unions at the expense of business owners.

GOP members of Congress have attacked the board in particular over a controversial complaint its general counsel issued against the Boeing Company, as well as new rules created that would streamline the union election process and require businesses to post notices in the workplace that spell out collective bargaining rights. Declaring the board "out of control," Republicans such as Sen. Lindsey Graham (S.C.) have said they'd rather see the board rendered inoperable than issuing such decisions.

Due to a recent appellate court decision, they may soon accomplish that goal. In January, a panel of judges for the U.S. Court of Appeals for the District of Columbia Circuit ruled that Obama's three recess appointments to the five-member labor board in January 2012 violated the Constitution, a decision that was lauded by congressional Republicans. The Supreme Court is expected to take up the case. Depending on its decision, the ruling could invalidate more than a year's worth of work by the board and strip it of a functional quorum.

Since the appellate ruling, known as Noel Canning, scores of companies have argued that decisions or cases against them are illegitimate because the board did not have proper authority to issue them. Such uncertainty has infuriated labor unions, as it further delays union election efforts and makes it more difficult to resolve charges of unfair labor practices. Many see the stymying of the board by Republicans and business groups as a kind of short-circuiting of labor law itself.

"It used to be that if you didn't like a law, you'd go to the legislative process and you'd change it, repeal it, modify it," Fred Feinstein, a former general counsel for the NLRB during the Clinton years, recently told HuffPost. "But now, because of political gridlock, you can't do that, apparently. So you attack the agency that's supposed to be enforcing the law."

Until the Noel Canning case is resolved, House Republicans have demanded that board members Block and Griffin, whose recess appointments are now in doubt, step down in the interim, which would effectively shut down the board. (The agency has continued to operate as usual since the ruling.)

House Republicans are also pushing a bill that would prevent the board from carrying out any activities that require a three-member quorum.

Labor officials are hopeful that the full slate of bi-partisan nominees -- per tradition, three of them lean politically toward the sitting president, two toward the opposing party -- will put enough public pressure on Republicans to allow the nominations to proceed.

"There's no legitimate public case not to go ahead and confirm all of them," said George Kohl, senior director at the Communications Workers of America union. "It's a matter of clearing up the uncertainty and moving forward, rather than creating more in obstruction."

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